April 21, 2011

Mattel had argued that the dolls' designer Carter Bryant developed the Bratz concept while working for it in the late 1990s and secretly took the idea to MGA. MGA denied the claims and countersued, accusing Mattel of corporate espionage, using spies with fake business cards and dummy invoices to gain access to MGA's ideas. MGA also accused Mattel of threatening to scupper business deals with retailers and media firms if they did business with Bratz....

"In October 2009, Mattel announced a new Palm Beach line which included a Sugar Daddy Ken doll aimed for adult collectors. The said line will officially debut in the spring of 2010. The line proved to be controversial, because of Ken's suggestive-sounding name. The doll had a more mature appearance and came with a West Highland Terrier puppy. Mattel defended the doll's name, saying that the puppy's name is "Sugar", thus making Ken "Sugar's Daddy"."

One of the best moments in my legal career was when my client won a fairly large judgment in a counterclaim on a cogeneration facility contract case.

For cost and other reasons, I would never have advised my client to make the claim as a primary claim, even though it seemed to have some real merit. We tried to settle, but the plaintiff's CEO was a jerk, and he listened to some fancy lawyer from Washington who was an "expert" in energy law.

The fancy Washington lawyer treated my young female partner, a tiny soft spoken blonde who looked about age 24, with total contempt. They would not settle, and she tried the case before a judge in the UP of Michigan.

She won a verdict that exceeded $2 million with interest. The plaintiff's CEO ripped his phone out of the wall when he heard the verdict, and after they lost the appeal he fired the fancy Washington lawyer.

David, I agree, there is little more professionally satisfying than a solid verdict against an arrogant @#$@! attorney (usually from a big firm, but not always), especially when she has underestimated you because of your lack of an Ivy league pedigree.

What fascinates me is the degree to which the high-power folks continue to trip over basic demographics.

Millennial generation births peaked in 1991-'92. Girls' interest in such dolls peaks at age 11 to 14. The peak market for Bratz or Barbie was therefore going to be in the 2002 to 2006 era in any case. Remember when the suit was launched.

Why is anyone surprised that recent sales of the things are "lackluster"? The peak of that wave was about six years ago.

Those girls are getting ready to rent their first apartments. That's where the demographic money is, not in dolls. Not anymore.

And when they start to purchase starter homes in their early- to mid-30s -- about 2023 to 2026 -- you can expect the housing market (finally!) to begin a sustained recovery. And only then.

My sister had the Barbies, but they thought Ken was a wimp and they dated my uncle's GI Joes - the ones with the fuzz hair and beards. (My uncle is 3-1/2 years older than me - so more like a cousin...)

I used to make my sister's Barbie's salads out of Brussels' Sprouts. They are *just* the right size for Barbie lettuce.

Sis had many Barbies, a couple of Kens, and Skipper, Barbie's little sister. She also had a "Growing Up Skipper". You'd swing her arms and she'd "grow" a half inch or so and get boobs.

Patrick, they didn't underestimate me. I didn't try cases, and there was a reason why I didn't. But they totally misunderestimated my young partner who (come to think of it) had a bit of a Barbie look in those days. (She would kick me in the shin for saying so,)

With respect, that's an overbroad target audience. In counterclaiming, MGA was also "litigious." Would they have filed their claims independently had they not first been sued by Mattel? That must remain a matter of speculation, but there is no doubt that MGA did, in fact, pursue its own litigation, which the result suggests was meritorious.

The case ought be an object lesson for those who both file unjustified lawsuits and engage in unethical and fraudulent business practices outside the courtroom.

"A bit scary, though it appears that there is some debate as to Barbie's actual measurement, if she were life sized."

That's already been blogged here. Althouse had the insightful point that Barbie's dimensions have a lot to do with the fact cloth doesn't bend the same when it's the small size of Barbie clothes. She looks proportional when dressed, and only weirdos like Crack Emcee play with naked barbie dolls.

The Barbie dimensions are much less sinister than I had long though, apparently.

Beldar, I speculate that MGA was less likely to sue Mattel had they not been sued.

Even if that's not the case, it's amusing that Mattel is engaged in awful practices and then having that turn their lawsuit on its head.

I'm amused at corporate espionage when most of these ideas seem to be dolls that produce liquid and dolls that look like prostitutes. It's not really that creative. They should take a page from Tom Hanks and just hire a greedy kid to think up a few dolls.

There was that "pocket" too. You could get your child size fingers up under the rubber. I think my sis put some peas in there for implants once. She did have that funny line so bikinis were out and tankinis weren't even on the horizon yet. Tank suits only for Skipper.

Kimsch, the 60s and 70s were a great time for kid sisters in America, don't you think? First I Dream of Jeannie got one and then Bewitched. Both brunettes and therefore, both "the evil sister". I'm guessing Skipper (how Gilligan) was Barbie's wicked younger sister who gave blow jobs to Ken's Malibu beach pals.

Back in the 70's there was also a doll called Baby Alive that was like a Betsy Wetsy but she'd also eat a jello like substance and "eliminate" that too. My sister's doll got somewhat constipated because she hadn't made the "food" with enough water and my dad had to ream the doll out with a coat hanger. Poor Baby Alive....

Snark aside this case as obscure as it is may have a huge effect n the world of copyrights. The article was essentially crap but if the gist of it is that Mattel sued MGA for an infringement under the work for-hire rule then the 9th circuit has created a situation for the Supreme Court. If the idea-expression was conceived while the creator was employed by Mattel then Mattel is right. If indeed the creator created the expression while employed in that capacity by Mattel and the 9th told Mattel it has no right under work for hire then every copyright holder who has a copyright under work for hire is in deep do do. Maybe Beldar or Ann can think it through.

I used to work in the toy and sporting goods industry years ago. The level of cheating, espionage, corporate thieving and secrets trading makes wall street insider trading look like a couple of school girls passing notes in classroom to each other about a boy.

"If indeed the creator created the expression was employed by Mattel then Mattel is right. If indeed the creator created the expression while employed in that capacity by Mattel and the 9th told Mattel it has no right under work for hire then every copyright holder who has a copyright under work for hire is in deep do do"

The article indicates that the jury answered this question. Mattel can assert that someone came up with an idea before they left, but they would need to prove it. And if their proof is their dishonest employees who stole ideas and acted unethically, then the jury was smart to not that Mattel failed to prove their claim was true.

I do not think we have to worry about this contradiction. That's not a fact issue. The jury was almost certainly asked specifically to rule on the fact itself (was whoever employed by Mattel when they made the Bratz idea) and said no, that wasn't proven to preponderance.

I used to work in the toy and sporting goods industry years ago. The level of cheating, espionage, corporate thieving and secrets trading makes wall street insider trading look like a couple of school girls passing notes in classroom to each other about a boy.

We are both surmising from a bad article. Mattel did win the first case. The 9th ruled on something and the case was retried. What is not know from the article was why Mattel won the first case, what the 9th ruled in that appeal and what were the facts that were allowed to be presented and jury instructions issued to the jury in the second.

"The article indicates that the jury answered this question. Mattel can assert that someone came up with an idea before they left, but they would need to prove it. And if their proof is their dishonest employees who stole ideas and acted unethically, then the jury was smart to not that Mattel failed to prove their claim was true."

If that someone was indeed on Mattel's payroll when the work was created (and employed in that capacity) then indeed it will be reheard again in the circuit court and probably in the SCOTUS. There is way too much money involved in the world of copyrights when it comes to work-for-hire and different circuits have different rulings.

"then indeed it will be reheard again in the circuit court and probably in the SCOTUS. "

You don't understand.

That's not a factual question, but a legal one. The jury wouldn't answer a question like that. they would answer whether or not Mattel proved the element of the tort.

"There is way too much money involved in the world of copyrights when it comes to work-for-hire and different circuits have different rulings."

Do you have an indication that this issue has been implicated in a controversial way? I think the jury simply found that Mattel failed to prove their facts, given their stunning lack of ethics and credibility.

I've read several other articles on the subject, and the behavior of Mattel is childish and extreme.

MGA claims that "Bryant first sketched the dolls in 1998, when he was living in Missouri and working at a clothing store then further developed the sketches on his own time and using his own materials." a year before the 1999 time Mattel claims Bryant made the designs for Mattel.

In other words, the scenario is not that Bryant made them while working for Mattel, but screw the law because we hate Mattel. It's that MGA's factual assertions contradict that idea entirely.

Let me suggest that if the issue is copyright infringement, the problem is not when someone came up with the idea, but rather, when it was first fixed in a tangible medium. Copyright does not attach at the point of inspiration, as does patent (at least until patent "deform" legislation passes in the next month or two). Rather, it attaches at the time that the protectable expression is fixed in a tangible medium.

Of course, the 9th Circuit has always had an interesting take on copyright law, and so it rarely surprises me when they go against the rest of the Circuits.

MGA claims that "Bryant first sketched the dolls in 1998, when he was living in Missouri and working at a clothing store then further developed the sketches on his own time and using his own materials." a year before the 1999 time Mattel claims Bryant made the designs for Mattel.

I would suggest that if this were the case, that Mattel would not have a very strong case.

The horrible narcissistic behavior, the corporate espionage, the mendacity, the subterfuge ...all would be channeled into something else were it not for the business world.

The Borgias demonstrates how these constant human traits mangled the Catholic Church. The Mafia is another example.

But when this involves nations, the outcomes are ugly indeed.

Imagine if Hitler had been a corporate titan instead of the leader of Germany. He'd be lauded rather than reviled.

Imagine if Obama were president of Mattel, beaming over his new line of green anti-oppression diversity toys ...that no one actually buys. He'd already be out on his ass, and no one would ever hear his name again.

The "score" is One Win, and One Loss (on retrial), for Mattel. So they spent $400,000,000 ??? The threat of another toy company was bigger. They went nuclear.

Chaos on the battlefield? "Bratz" was a one-time wonder. And, is sold at discount, now.

Mattel saved it's stinking barbie franchise ... since no matter what ... these dolls will be traded. (It's like a Marilyn Monroe label, where little girls dream of wearing bras some day. And, having handsome boyfriends. Before reality kicks in.)

When I was young I preferred the dolls that pee'd.

By the way, when did it become something an old company could do to you ... if you were unhappy enough at work to want to go elsewhere? And, to know your value even if the old company wasn't gonna pay you for your ideas? Since when can you successfully sue for someone else's ideas? (I guess when the supreme'o's add to Kelo. And, say so.)

Good. I've been anti-Mattel ever since they sold poison toys, Congress passed the CPSIA in response, small businesses who had done nothing wrong got hurt, and Mattel got themselves exempt from the testing requirements. Couldn't happen to a more deserving company.